RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01867
BRANCH OF SERVICE:  Army	BOARD DATE:  20150211
SEPARATION DATE:  20040814

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Military Police) medically separated for a bilateral knee condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “bilateral, slight, moderate knee pain due to chondromalacia patellae,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “bilateral knee pain due to chondromalacia patallae” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was found unfit for duty and discharged for my left and right knees.  Due to my injuries I have not been successful with finding employment and was denied a job because of my injuries in 2005.  I applied for Vocational Rehabilitation and was still unable to find employment due to my medical issues.  I was sent to a surgeon by the VA and was told there was not a surgery that could fix my knee condition.  Currently these medical conditions are getting worse and it is hard to take care of my family at this time. I am currently at 40% disability with the VA.  I do believe my military discharge rating should have been higher with retirement disability.  I am greatly appreciative for this second look at my records.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20040617	VA* - (22 Months Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Right Knee Chondromalacia Patella	5024	10%	20060608	
			Left Knee Chondromalacia Patella	5024	10%	20060608	
Other x 0  (Not in Scope)	Other x 6 		
RATING:  10%	RATING:  20%*	
*Derived from VA Rating Decision (VARD) dated 20070824 (original VARD dated 20050308 and most proximate to date of separation (DOS) was not in evidence).

ANALYSIS SUMMARY:  The PEB combined the left knee pain and right knee pain conditions under a single disability rating, coded analogously to 5003 with application of the USAPDA pain policy AR 635-40 B24.f.  Although the VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the left knee pain and right knee pain conditions will be presented separately; with attendant recommendations regarding separate unfitness determinations for each, and separate ratings, if indicated.

Right Knee Pain and Left Knee Pain.  Since there was no primary source material in the service treatment record, details pertinent to the conditions are derived from the MEB narrative summary (NARSUM) dated 16 April 2004 and the most proximate VARD in the submitted record dated 24 August 2007.  According to the NARSUM, the CI indicated that she felt her right knee pop while exercising; and the pain continued.  Beginning in 2000, she also experienced “pains in the left knee.”  No etiology for the pain in either knee was in evidence.  The NARSUM thereafter referred to both knees in regard to her symptoms, examination findings, and limitations.  Pain in the knees was increased with exercise, marching, jumping, going up and down stairs, and prolonged standing or sitting.  Pain, described as burning or stabbing in or around the knees or knee caps, was present on and off every day, but not constantly nor did it affect her sleep.  Although she had been seen by numerous physicians over several years, no treatment or procedures performed are available to review, although “an MRI in 2003 showed bilateral chondromalacia patellae.”  Examination revealed the CI to be in no distress with a normal appearing gait, no effusions of the knees, normal ligaments of the knees, no significant joint line tenderness, and normal range-of-motion (ROM) of the knees “with perhaps hyperextensibility of the knee joint.”  Bilateral patellar (knee cap) tenderness with mild crepitus (grinding sensation) was present on palpation.  At the time of the NARSUM examination she was unable to do any aerobic exercises, which involved weight bearing.  Functionally, she was unable to wear a backpack; marching was limited to a half mile or less; and she had not been able to run, walk, swim or bicycle for the physical fitness test.  Her condition was described as “stable at a poor level” with “her prognosis . . .  good in general, but poor . . . for soldiering.”  The commander’s statement, dated 22 March 2004, indicated the CI’s knee problems prevented her from performing all of the alternate events of the physical fitness test and most military police duties due to her chronic knee problems; and that her profile prohibited her from lifting heavy equipment, standing and/or walking for long periods of time.  At the MEB examination dated 26 March 2004, the CI noted chronic knee pain since 1999 with supportive devices (e.g. knee brace or orthotics), but no surgery; and the examiner noted “B/L knee crepitation.”  A permanent L3 physical profile was issued on 29 March 2004 for bilateral, slight, moderate knee pain due to chondromalacia patellae with no assignment limitations but limited Army physical fitness test, marching and running.

The most proximate VA C&P examination available in the record dated, 18 January 2008, was performed 22 months after separation.  Although temporally remote, it provides corroborating evidence of the CI’s condition within 5 weeks after separation based on its reference to a prior C&P examination of 23 September 2004; and, therefore, has more than a limited degree of probative after separation value.  The CI reported the onset of the right knee and left knee conditions in 1999 while playing basketball.  She reported the right knee was affected and denied any overt injury or trauma to the left knee.  “She was last seen by an orthopedist on January 10, 2007.”  An X-ray of the right knee dated 7 December 2007 revealed “[m]ild degenerative changes . . . [and] no significant changes since the prior examination of September 23, 2004.”  The VA examiner noted that the CI ambulated with a normal gait without a cane, brace, or crutches.  Neurological examination was unremarkable.  The right knee was tender to palpation anteriorly with full extension at 0 degrees (Normal 0 degrees) and flexion to 120 degrees (Normal 140 degrees) and no laxity or evidence of meniscal involvement, but with marked crepitance.  The left knee was tender to palpation anteriorly with pain and crepitance on motion with full extension at 0 degrees and flexion to 130 degrees and no laxity or evidence of meniscal involvement.  There was no joint line tenderness, erythema, effusion, or popliteal mass of either knee.  On active ROM, after three repetitions, there was pain on motion with discomfort throughout without edema, warmth, or deformity.  An X-ray of the left knee demonstrated mild lateral patellar (knee cap) tilt, but was otherwise unremarkable.  The VA examination diagnosis was right knee chondromalacia without progression and left knee chondromalacia without progression.  Although the CI experienced flare ups of pain, the DeLuca additional limitation of function could not be determined without resorting to mere speculation.  A temporally remote examination by more than 6 years was reviewed; however, it offered very limited or no probative after separation evidence of any significant value.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a rating of 10% using code 5099-5003 for bilateral knee pain due to chondromalacia patellae confirmed by a magnetic resonance imaging with a normal ROM and with pain described as “slight, frequent.”  The VA, according to the VARD dated 24 August 2007, applied a 10% rating for right knee chondromalacia using code 5024 (tenosynovitis) and a 10% rating for left knee chondromalacia using code 5024 effective on 15 August 2004 based on a pre-discharge examination and a VARD dated 8 March 2005.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating.  In this case, both knees were considered to fail retention standards; both were implicated by the NARSUM and in the commander’s statement with phrase “knee problems”; and, both were profiled.  Therefore, members agreed that the right knee and the left knee were separately unfitting with a rating of 10% for each knee using the analogous code 5099-5003 (based on a non-compensable ROM with pain on motion) or the alternative code 5099-5014 (osteomalacia); however, the Board was unable to find a route to a higher rating than 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee condition and a disability rating of 10% for the left knee condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As discussed above, PEB reliance on the USAPDA pain policy for rating the knee conditions was operant in this case and the conditions were adjudicated independently of that policy by the Board.  In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Knee Pain (Chondromalacia Patella)	5099-5003	10%	
Left Knee Pain (Chondromalacia Patella)	5099-5003	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131015, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150010412 (PD201301867)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		

CF: 
(  ) DoD PDBR
(  ) DVA